Last week, the U.S. Supreme Court heard oral arguments in Giles
v.California,No. 07-6053.

At issue was whether the defendant’s Sixth Amendment right to
confront his accusers was violated where the trial court
admitted the dead victim’s prior statements into evidence, where the statements implicated the defendant in
her murder.

Last year, the New York State Court of Appeals considered a similar issue in People v. Nieves-Andino, 2007 NY
Slip Op 05584, but never reached the constitutional mer-
its of the issue, concluding instead that the victim’s state-
ments were not testimonial.

In Nieves, Jose Millares, the victim who later died, was
discovered lying in the road by a police officer respond-
ing to a 911 call regarding shots fired.

The responding officer summoned an ambulance and
then asked Millares for his name and other pedigree information.
He also asked him what had happened. Millares responded that he
had argued with a man named Bori who had shot him three times.

The defendant argued that admitting the victim’s statement into evidence at trial would violate his Sixth Amendment right to confront the
witnesses against him pursuant to the Supreme Court’s ruling in Crawford v. Washington. The prosecution argued that the statement fell
under the excited utterance exception to the hearsay rule and that its
admission would not violate the Sixth Amendment.

The court concluded the victim’s statements did not violate the
defendant’s right to confront witnesses against him since the officer’s primary purpose in questioning Millares was to address an
ongoing emergency, and thus the statements were not testimonial in the first instance: “Our decision is guided by Crawford v. Washington(541 US 36 [2004]) and Davis v. Washington (126 S Ct 2266 [2006]). In those cases, the Supreme Court held the Federal Confrontation Clause prohibits the ‘admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination’ (Davis, 126 S Ct at 2273).
Only statements that are testimonial make the absent declarant a
‘witness’ within the meaning of the Confrontation Clause (see id.)
… When ... a police officer justifiably believes that the assailant
no longer poses a threat to the victim, the purpose of his or her
interrogation of the victim may ‘evolve’ from dealing
with an ongoing emergency to establishing past events
with a view to later criminal prosecution (id.). On this
record, however, the initial purpose of Officer Doyle’s
inquiry did not change.”

In contrast, under the facts of Giles v. California, the
statement appears to be testimonial, therefore the
Supreme Court must address the constitutional issue and
consider whether the defendant’s Sixth Amendment rights
were violated by the trial court’s decision to admit the
dead victim’s statements into evidence.

The highest appellate court below, the California
Supreme Court, concluded the defendant waived the right
to confront his accuser by operation of the common law “forfeiture
by wrongdoing” doctrine, since his actions were the very reason that
the dead victim was unavailable to testify.

Based on recent decisions from the Supreme Court, I predict that
it will uphold the California Supreme Court’s ruling.

This conclusion, while an uncomfortable one for me as a criminal
defense attorney, is the only outcome that would make sense from a
public policy perspective. To hold otherwise would be to encourage
assailants to cause every physical assault to end in death in order to
take advantage of the protective umbrella of the Sixth Amendment.

Quite frankly, I’m not sure that the alternative — allowing murderers to benefit from the death of their victim — is one that should
be available in a civilized society such as our own.

A hypothetical medical condition used to illustrate the idea that if you are at fault when you injure someone, you are responsible for all the consequences, whether you could have foreseen them or not. For example, if you cause an injury to a hemophiliac who begins to bleed severely, you are responsible for whatever happens to him, even though you had no way of knowing that the injury would be so severe.

In the smack down of the decade, the New York County Lawyer's Association Ethics Committee butts head with the American Bar Association Ethics Committee on the issue of mining for metadata inadvertently disclosed by opposing counsel. It's hunky dory per the ABA, but apparently the NYCLA respectfully disagrees with that conclusion.

And how:

This Committee finds that the NYSBA rule is a better interpretation of the Code’s disciplinary rules and ethical considerations and New York precedents than the ABA's opinion on this issue. Thus, this Committee concludes that when a lawyer sends opposing counsel correspondence or other material with metadata, the receiving attorney may not ethically search the metadata in those electronic documents with the intent to find privileged material or if finding privileged material is likely to occur from the search.

“Where the use of Mounted Unit becomes necessary for crowd
control purposes, incident commanders are reminded that if
Mounted officers are deployed for such purpose it is important to
ensure that a crowd or group to be dispersed has suffi-
cient avenues of escape and/or retreat available to them
and has a reasonable chance to disperse.”

— Paragraph 3 of the March 28 settlement order in
Stauber and the New York Civil Liberties Union v. the
City of New York, 03-cv-09164

In 2003, the New York Civil Liberties Union filed a
lawsuit against the New York Police Department on
behalf of protesters injured by police during peaceful
antiwar demonstrations.

The complaint alleged the NYPD prevented protesters from leaving police barricaded areas and
approached the trapped crowds on horseback, causing
injuries to many in attendance.

The plaintiffs included a then-law student, now an attorney, who
was injured by a police horse and a woman confined to a wheelchair
who alleged she was trapped behind a police barricade and her
wheelchair was damaged by a police officer when she attempted, for
medical reasons, to leave the barricaded area.

Pursuant to the Settlement order, the defendants agreed to pay
$100,000 in attorneys fees to the New York Civil Liberties Union
and $25,000 in damages to the injured plaintiffs.

The NYPD also agreed to adopt written policies that ensure those lawfully exercising their First Amendment rights can gain
access to protest areas, have adequate means of ingress and
egress from the areas set aside for the protest, and that police provide adequate warning and an opportunity to disperse prior to
using the Mounted Unit for crowd control.

In other words, the police agreed, apparently because they had
no other choice, to give people a chance to get out of the way
before charging into crowds on police horses, each of which
weighs a ton or more.

It would seem this last concession would have been self-evident to
the Mounted Police as they sat atop their large horses, looking down
on the tiny mortals below them — some in wheel chairs,
some with children, some with long, unkempt hair —
engaging in a process as American as apple pie: peacefully
protesting a contentious war.

Shouldn’t “New York’s finest” have known better than
to stomp on its citizens with the heavy hooves of horses?
One would think that in 21st century America, such
flagrant abuses of police power wound be a thing of the
distant past.

One would hope taxpayers wouldn’t have to
foot the bill for a costly lawsuit brought to prevent the
NYPD from using horses to stampede the very same
people it is paid to protect.

And yet, it turns out such wishful thinking is apparently naïve, at best, since that is exactly what New York
taxpayers had to do: pay damages to the injured plaintiffs, pay
attorneys fees to their counsel and fund the investigation and
defense of a lengthy federal lawsuit for police conduct that never
should have occurred in the first place.

Police conduct in this instance was deplorable just as the costs
of defending the abusive conduct were unnecessary and unforgivable.

All the more unforgivable is the fact that this claim was even
necessary to protect our constitutional right to gather and engage
in peaceful protest, for this was a lawsuit never should have been.

Statute of limitations cases always interest me, since they present unique issues, and Schultes v Kane
2008 NY Slip Op 03271 is just such a case.

Schultes offers an unusual factual scenario, and clarity on the issue of when the statute of limitations begins to run on emotional distress claims.

In this case, 30 years after the plaintiff and defendant divorced, the defendant, without the plaintiff's knowledge, had their children's bodies disinterred from a burial plot owned jointly by the parties and had the bodies placed elsewhere.

The plaintiff learned of this fact a few years later in 2005, and shortly thereafter filed a lawsuit alleging, inter alia, intentional and negligent infliction of emotional distress. The husband alleged that her claims were precluded by the statute of limitations.

The Third Department disagreed:

The statutes of limitations do not bar plaintiff's causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress. "[A]s a general proposition, a tort cause of action cannot accrue until an injury is sustained. That, rather than the wrongful act of defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual"...Because extreme emotional distress is an element of each of these causes of action, and plaintiff could not truthfully allege all of the elements until she suffered this element of injury, these causes of action did not accrue until she suffered distress as a result of learning that her children's bodies had been disinterred...As plaintiff commenced the action within two months after these causes of action accrued, the statutes of limitations had not expired...

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